Illustrative activity to the topic that often our convictions on the Constitutional values are not held on basis of correct knowledge and understanding

Quizo Does Indian Constitution distinguish between public spaces and private spaces or does same

law hold in both cases?o Is Personal Law based on religion? In other words is it true that Hindu’s across the country

follow the same law? And similarly Muslims, Christians?o Is Personal law a matter of Union List, State List or Concurrent List?o Do we have Uniform Criminal law across the country or can a state amend criminal laws?

Possible answers will imply that most think that we have uniform personal laws cutting across state for each religion and that this is not regional. Most may also think that criminal laws are uniform across the country

Discussion on why Uniform Civil Code (UCC)

Possible reasons stated would include

o Every citizen is the same, is to be respected equally and henceo We should not distinguish between religionso Women in some religions will be affected if we don’t have common personal lawo …

Reveal correct answers to quizo Does Indian Constitution distinguish between public spaces and private spaces or does same

law hold in both cases? Very much and so there is a difference between Public law and Personal law.

o Is Personal Law based on religion? In other words is it true that Hindu’s across the country follow the same law? And similarly Muslims, Christians?

It is based on a complex combination of region and religion. Within regions there are often difference across religions. However there are cases where a regional personal law is of one pre-existing region which commonly applies to all religions within that region and not the personal law of the religion which applies to rest of the country. Eg: Goa, J&K, Nagalanad

“Personal law is neither territorial, private, nor public law. It is also not defined in any Act. According to Subba Rao, personal law applies to those who profess a particular religion. Pearl takes the definition somewhat further by stating that a personal law is part of a person through his or her connection with a particular legal regime. The connecting factor does not have to be religion, but can also be factors such as race, nationality, domicile, tribe or residence.” 2

o Is Personal law a matter of Union List, State List or Concurrent List? Concurrent List, which means states can set the laws, amend it etc.

o Do we have Uniform Criminal law across the country or can a state amend criminal laws? States can amend Criminal laws subject to some limits.

Compare pre-existing knowledge to desire for UCC and based on correction of knowledge how the desire doesn’t make sense

o (what follows is written in a rough manner; needs to be thoroughly vetted by an expert)o Distinguish between public law and private law: “Public law is concerned with the

relationship between the state on the one hand, and the rights and duties of the individual on the other. Public law therefore includes, inter alia, constitutional law and administrative law. … In contrast, private law deals with the relationship between private individuals, and includes areas such as family law, the law of succession, and law of property.”2

o Establish that we need commonality in public law and that Constitution and Laws ensure this.

o In drafting the Constitution, we have followed the principles that for private spaces i.e. personal law, we are guided not by “commonality” but by diversity and respect for diverse traditions. This respect for diversity is not unlimited, it is subject to criminal law (?). Criminal law itself is not 100% common across the country.

o Why should we apply commonality in public space and bring in lot more diversity (even if not unlimited) in the case of personal law?

o What is the difference between “melting pot” nation and “salad bowl” nation? Which type did India want to be?

o Why did the Constituent Assembly not put the Uniform Civil Code in the Fundamental Rights but in the Directive Principles of State Policy?

“Even in the Constituent Assembly, there was division on the issue of putting a UCC in the fundamental rights chapter. The subcommittee on this was so sharply divided that the matter was eventually settled by vote. It finally held that the provision was outside the scope of fundamental rights and thus non-justiciable. We need to appreciate the distinction between justiciable and non-justiciable rights. B.R. Ambedkar explicitly said in the Assembly, “No government can use its provisions in a way that would force the Muslims to revolt. If a government acts thus [imposing a common civil code], such a government would be insane in my opinion.””1

o What do you want India to be like? This part can be left open ended as there are many sides to the arguments on UCC

and it is not an easy matter to settle one way or other. So the purpose of this session is not to end with a unanimous conclusion, but to

clarify that the argument for UCC is not as straightforward or easy or without “other side”.

Open discussion on how and why we buy these arguments without proper understandingo If there is a general shift in thinking of participants (i.e. towards agreeing that things are not

as simple as they originally thought), then go into next level of reflection i.e. on why we buy such arguments without full

knowledge…o If above leads to understanding, that this is often propaganda and we end up buying the

argument without proper thinking, then discuss how to think through well when such things are sold to us.

End with the urge to stay alert and aware and keep increasing our knowledge and discussing about such things openly with others

References:

1. https://www.thehindu.com/opinion/op-ed/the-progressive-way/article24970676.ece 2. “Phenomenon of personal laws in India: some lessons for South Africa”. Author: Christa

Rautenbach; Source: The Comparative and International Law Journal of Southern Africa, Vol. 39, No. 2 (JULY 2006), pp. 241-264; Published by: Institute of Foreign and Comparative Law